Nevada City Municipal Code Ch. 5.32 Licensure of Tobacco Retailers

The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:

"Arm's length transaction" means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two (2) informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm's length transaction.

"Department" means the Nevada City police department.

"Electronic Smoking Device" means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of vapors including nicotine or other substances. "Electronic smoking device" includes any such device, whether it is manufactured, distributed, marketed, or sold as an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, electronic vape, vaporizer or any other product name or description. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for the use in the mitigation, treatment, or prevention of disease.

"Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

"Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten (10) percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day-to-day operations of a business.

"Self-service display" means to open display or storage of tobacco products, paraphernalia or electronic smoking devices in a manner that is physically accessible in any way to the direct general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer.

"Significant tobacco retailer" means any tobacco retailer whose principal or core business is selling tobacco products, tobacco paraphernalia, or both, as evidenced by any of the following: twenty (20) percent or more of floor area and display area is devoted to the sale or exchange of tobacco products, tobacco paraphernalia, or both; sixty-seven (67) percent or more of gross sales receipts are derived from the sale or exchange of tobacco products, tobacco paraphernalia, or both; or fifty (50) percent or more of completed sales transactions include a tobacco product or tobacco paraphernalia.

"Smoking" means possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind, including electronic smoking devices), the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind, including electronic smoking devices).

"Tobacco paraphernalia" means cigarette papers or wrappers, pipes, electronic smoking devices, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.

"Tobacco product" means any substance containing tobacco leaf, including but not limited to cigarettes, electronic smoking devices, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco (such as flavored tobacco); and any product or formulation of product containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.

"Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, or tobacco paraphernalia, which includes electronic smoking devices, or who distributes free or low-cost samples of tobacco products or tobacco paraphernalia. "Tobacco retailing" means the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

"Vending machine" means a machine, appliance, or other mechanical device operated by currency, token, debit card, credit card, or any other form of payment that is designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

(Ord. 2006-03 § 2 (part), 2006; Ord. No. 2016-04, § I, 7-6-2016)

A. It is unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer's license pursuant to this chapter for each location at which that activity is to occur. Tobacco retailing without a valid tobacco retailer's license is a public nuisance.

B. A tobacco retailer or proprietor without a valid tobacco retailer license, including, for example, a person whose license has been revoked:

1. Shall keep all tobacco products and tobacco paraphernalia out of public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a license under Section 5.32.120;

2. Shall not display any advertisement relating to tobacco products or tobacco paraphernalia that promotes the sale or distribution of such products from the tobacco retailer's location or that could lead a reasonable consumer to believe that such products can be obtained at that location.

C. Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer's license any status or right other than the right to act as a tobacco retailer at the location in the city identified on the face of the permit. For example, nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of this code, including without limitation the zoning ordinance, building codes, and business license tax ordinance, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. For example, obtaining a tobacco retailer license does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code Section 6404.5.

(Ord. 2006-03 § 2 (part), 2006)

A. No license may issue to authorize tobacco retailing at other than a fixed location. For example, tobacco retailing by persons on foot or from vehicles is prohibited.

B. No license may issue to authorize tobacco retailing by a significant tobacco retailer, provided however that a significant tobacco retailer operating legally on the date that the ordinance enacting this chapter was first introduced and that would otherwise be entitled to receive a license may receive a license and may continue to operate so long as:

1. The license is renewed continually without lapse;

2. The significant tobacco retailer is not closed for business for more than sixty (60) consecutive days;

3. The significant tobacco retailer does not substantially change the business premises or business operation; and

4. The significant tobacco retailer maintains the right to operate under the terms of other applicable laws, including without limitation the zoning ordinance, building codes, and business license tax ordinance.

C. Prior to the adoption of this ordinance, there were four Tobacco Retail Licenses issued within the City of Nevada City. No additional Tobacco Retail Licenses shall be issued henceforth, except to a significant tobacco retailer operating legally on the date the ordinance enacting an amendment to this chapter in 2016 was first introduced and that would otherwise be entitled to receive a license and renewals thereof similar to existing Tobacco Retail Licenses. The existing Tobacco Retail Licenses may only continue in the City so long as:

1. The license is renewed continually without lapse;

2. The tobacco retailer is not closed for business for more than sixty (60) consecutive days for reasons other than making substantial renovations or repairs to the business premises necessitated due to fire, earthquake, act of God, the elements or other casualty beyond the control of the tobacco retailer;

3. The tobacco retailer does not substantially change the business premises or business operation; and

4. The tobacco retailer maintains the right to operate under the terms of other applicable laws, including without limitation the zoning ordinance, building codes, and business license tax ordinance.

5. Failure to adhere to these requirements will result in the loss of the Tobacco Retail License, provided that the purchaser of an entire business of a tobacco retailer with an existing Tobacco Retail License may secure a transfer of that Tobacco Retail License for a continuation of that business if part of the sale so long as all other provisions of this chapter are met. As noted above, the lost Tobacco Retail License shall not be replaced by the current holder of the license or anyone else.

D. No license may issue to authorize tobacco retailing at any location that is licensed under state law to serve alcoholic beverages for consumption on the premises (e.g., an "on sale" license issued by the California Department of Alcoholic Beverage Control) and no license may issue to authorize tobacco retailing at any location offering food for sale for consumption by guests on the premises. For example, tobacco retailing in bars and restaurants is prohibited.

(Ord. 2006-03 § 2 (part), 2006; Ord. No. 2016-04, § I, 7-6-2016)

Application for a tobacco retailer's license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof. It is the responsibility of each proprietor to be informed regarding all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer's license. No proprietor may rely on the issuance of a license as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing. A license issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to Section 5.32.110(D) of this chapter. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a tobacco retailer's license any status or right to act as a tobacco retailer in contravention of any provision of law. All applications shall be submitted on a form supplied by the department and shall contain the following information:

A. The name, address, and telephone number of each proprietor of the business that is seeking a license;

B. The business name, address, and telephone number of the single fixed location for which a license is sought;

C. A single name and mailing address authorized by each proprietor to receive all communications and notices (the "authorized address") required by, authorized by, or convenient to the enforcement of this chapter. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subsection B above;

D. Proof that the location for which a tobacco retailer's license is sought has been issued a valid state tobacco retailer's license by the California Board of Equalization;

E. Whether or not any proprietor has admitted violating, or has been found to have violated, this chapter or whose proprietorship has admitted violating, or has been found to have violated, this chapter, and, if so, the dates and locations of all such violations within the previous six (6) years;

F. Such other information as the department deems necessary for the administration or enforcement of this chapter;

G. All information required to be submitted in order to apply for a tobacco retailer's license shall be updated with the department whenever the information changes. A tobacco retailer shall provide the department with any updates within ten (10) business days of a change;

H. The information specified in subsections B and C shall be available to the public for all currently licensed tobacco retailers. Upon request, the department shall provide a compilation of this information to any person within a reasonable time and subject to a fee approximating the actual cost of compiling and presenting the information.

(Ord. 2006-03 § 2 (part), 2006)

Upon the receipt of an application for a tobacco retailer's license and the license fee required by this chapter, the department shall issue a license unless substantial evidence demonstrates that one (1) or more of the following bases for denial exist:

A. The information presented in the application is incomplete, inaccurate, or false. Intentionally supplying inaccurate or false information shall be a violation of this chapter.

B. The application seeks authorization for tobacco retailing at a location for which this chapter prohibits issuance of tobacco retailer licenses. However, this subsection shall not constitute a basis for denial of a license if the applicant provides the city of Nevada City with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm's length transaction.

C. The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued.

D. The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter (e.g., mobile vending), that is unlawful pursuant to this code, including without limitation the zoning ordinance, building codes, and business license tax ordinance, or that is unlawful pursuant to any other law.

(Ord. 2006-03 § 2 (part), 2006)

A. Renewal of License. A tobacco retailer license is invalid unless the appropriate fee has been paid in full, and the term of the license has not expired. The term of a tobacco retailer license is one (1) year. Each tobacco retailer shall apply for the renewal of his or her tobacco retailer's license and submit the license fee no later than thirty (30) days prior to expiration of the term.

B. Expiration of License. A tobacco retailer's license that is not timely renewed shall expire at the end of its term. To reinstate a license that has expired, or to renew a license not timely renewed pursuant to subsection A, the proprietor must:

1. Submit the license fee plus a reinstatement fee of ten (10) percent of the license fee;

2. Submit a signed affidavit affirming that the proprietor:

a. Has not sold and will not sell any tobacco product or tobacco paraphernalia after the license expiration date and before the license is renewed, or

b. Has waited the appropriate ineligibility period established for tobacco retailing without a license, as set forth in Section 5.32.120(A) of this chapter, before seeking renewal of the license.

(Ord. 2006-03 § 2 (part), 2006)

A. A tobacco retailer's license may not be transferred from one (1) person to another or from one (1) location to another. Whenever a tobacco retailing location has a change in proprietors, a new tobacco retailer's license is required.

B. Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless:

1. The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors; and

2. The new proprietor(s) provide the city with clear and convincing evidence that the new proprietor(s) have acquired or is acquiring the location in an arm's length transaction.

(Ord. 2006-03 § 2 (part), 2006)

The fee to issue or to renew a tobacco retailer's license shall be established by resolution of the city of Nevada City council. The fee shall be calculated so as to recover the total cost of both license administration and license enforcement, including, for example, issuing the license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this chapter. All fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law.

(Ord. 2006-03 § 2 (part), 2006)

A. Lawful Business Operation. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license issued, it shall be a violation of this chapter for a licensee, or any of the licensee's agents or employees, to violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.

B. Display of License. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.

C. Positive Identification Required. No person engaged in tobacco retailing shall sell or transfer a tobacco product or tobacco paraphernalia to another person who appears to be under the age of twenty-seven (27) years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under state law to purchase and possess the tobacco product or tobacco paraphernalia.

D. Minimum Age for Persons Selling Tobacco. Repealed.

E. Self-service Displays Prohibited. No tobacco retailer shall display tobacco products or tobacco paraphernalia by means of a self-service display or engage in tobacco retailing by means of a self-service display.

F. Minimum Pack Size for Cigars. A package of cigars shall contain at least five (5) cigars or more. This section does not apply to the sale or offer for sale of a single cigar for which the retail price exceeds $5.00.

(Ord. 2006-03 § 2 (part), 2006; Ord. No. 2016-04, § I, 7-6-2016)

A. Compliance with this chapter shall be monitored by enforcement agency. Any peace officer may enforce the penal provisions of this chapter.

B. The city of Nevada City police department shall check the compliance of each tobacco retailer at least one (1) time per each twelve (12) month period. Nothing in this section shall create a right of action in any licensee or other person against the city of Nevada City or its agents.

C. Compliance checks shall determine, at a minimum, if the tobacco retailer is conducting business in a manner that complies with tobacco laws regulating youth access to tobacco. When appropriate, the compliance checks shall determine compliance with other laws applicable to tobacco retailing.

D. The city of Nevada City shall not enforce any law establishing a minimum age for tobacco purchases or possession against a person who otherwise might be in violation of such law because of the person's age (hereinafter "youth decoy") if the potential violation occurs when:

1. The youth decoy is participating in a compliance check supervised by a peace officer or a code enforcement official of the city of Nevada City; or

2. The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the city of Nevada City or the California Department of Health Services.

(Ord. 2006-03 § 2 (part), 2006)

A. Revocation of License for Violation. In addition to any other penalty authorized by law, a tobacco retailer's license shall be revoked if the department finds or any court of competent jurisdiction determines, after the licensee is afforded notice and an opportunity to be heard, that the licensee, or any of the licensee's agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter or, in a different legal proceeding, has pleaded guilty, "no contest" or its equivalent, or admitted to a violation of any law designated in Section 5.32.090(A) above.

B

New License After Revocation.

1. After revocation for a first violation of this chapter at a location within any sixty (60) month period, no new license may issue for the location until ten (10) days have passed from the date of revocation.

2. After revocation for a second violation of this chapter at a location within any sixty (60) month period, no new license may issue for the location until thirty (30) days have passed from the date of revocation.

3. After revocation for a third violation of this chapter at a location within any sixty (60) month period, no new license may issue for the location until ninety (90) days have passed from the date of revocation.

4. After revocation for four (4) or more violations of this chapter at a location within any sixty (60) month period, no new license may issue for the location until five (5) years have passed from the date of revocation.

C. Appeal of Revocation. A decision of the department to revoke a license can be appealed to the city manager and must be filed with the city manager within ten (10) days of mailing of the department's decision. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to the city manager is not available for a revocation made pursuant to subsection D below.

D. Revocation of License Issued in Error. A tobacco retailer's license shall be revoked if the department finds, after the licensee is afforded reasonable notice and an opportunity to be heard, that one (1) or more of the bases for denial of a license under Section 5.32.050 existed at the time application was made or at any time before the license was issued. The decision by the department shall be the final decision of the city of Nevada City. The revocation shall be without prejudice to the filing of a new license application.

(Ord. 2006-03 § 2 (part), 2006)

A. In addition to any other penalty authorized by law, if the department finds or any court of competent jurisdiction determines, after notice and an opportunity to be heard, that any person has engaged in tobacco retailing at a location without a valid tobacco retailer's license, either directly or through the person's agents or employees, the person shall be ineligible to apply for or be issued a tobacco retailing license for that location as follows:

1. After a first violation of this chapter at a location within any sixty (60) month period, no new license may be issued for the person at the location until thirty (30) days have passed from the date of the violation.

2. After a second violation of this chapter at a location within any sixty (60) month period, no new license may be issued for the person at the location until ninety (90) days have passed from the date of the violation.

3. After a third or subsequent violation of this chapter at a location within any sixty (60) month period, no new license may be issued for the person at the location until five (5) years have passed from the date of the violation.

B. Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this chapter are subject to seizure by the department or any peace officer and shall be forfeited after the licensee and any other owner of the tobacco products and tobacco paraphernalia seized is given reasonable notice and an opportunity to demonstrate that the tobacco products and tobacco paraphernalia were not offered for sale or exchange in violation of this chapter. The decision by the department may be appealed pursuant to the procedures set forth in Section 5.32.110(C). Forfeited tobacco products and tobacco paraphernalia shall be destroyed.

C. Each day after the effective date of this chapter on which tobacco products or tobacco paraphernalia are offered for sale in violation of this chapter shall constitute a violation of this chapter separate and apart from any other violation of this chapter.

(Ord. 2006-03 § 2 (part), 2006)

For a first or second alleged violation of this chapter within any sixty (60) month period, the city attorney may engage in settlement negotiations and may enter into a settlement agreement with a tobacco retailer alleged to have violated this chapter without approval from the city council. Notice of any settlement shall be provided to the department, and no hearing shall be held. Settlements shall not be confidential and shall contain the following minimum terms:

A. After a first alleged violation of this chapter at a location within any sixty (60) month period:

1. An agreement to stop acting as a tobacco retailer for at least one (1) day;

2. A settlement payment to the city of at least one thousand dollars ($1,000.00); and

3. An admission that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations.

B. After a second alleged violation of this chapter at a location within any sixty (60) month period:

1. An agreement to stop acting as a tobacco retailer for at least ten (10) days;

2. A settlement payment to the city of at least five thousand dollars ($5,000.00); and

3. An admission that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations.

(Ord. 2006-03 § 2 (part), 2006)

A. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

B. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen (18) years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter, and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented.

C. Violations of this chapter are subject to a civil action brought by the city attorney, punishable by:

1. A fine not less than two hundred fifty dollars ($250.00) and not exceeding one thousand dollars ($1,000.00) for a first violation in any sixty (60) month period; or

2. A fine not less than one thousand dollars ($1,000.00) and not exceeding two thousand five hundred dollars ($2,500.00) for a second violation in any sixty (60) month period; or

3. A fine not less than two thousand five hundred dollars ($2,500.00) and not exceeding five thousand dollars ($5,000.00) for a third or subsequent violation in any sixty (60) month period.

D. Violations of this chapter may, in the discretion of the city attorney, be prosecuted as infractions or misdemeanors.

E. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.

F. Violations of this chapter are declared to be public nuisances.

G. In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the city attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(Ord. 2006-03 § 2 (part), 2006)